People v. Smith

California Court of Appeal May 14, 1965 No. Crim. 4789Published

Before: Shoemaker

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Holding. The court held that the 90-day period for seeking relief from a bail forfeiture under Penal Code section 1305 commences upon the entry of the failure to appear in the minutes, not upon the mailing of notice to the surety. Furthermore, the clerk's failure to provide notice does not deprive the court of jurisdiction to order a final forfeiture.

Issues

Whether the 90-day period to seek relief from bail forfeiture under Penal Code section 1305 begins upon the entry of the failure to appear in the minutes or upon the mailing of notice to the surety.
Whether a clerk's failure to provide notice of bail forfeiture to a surety deprives the court of jurisdiction to order a final forfeiture.
Whether the appellant met the burden of proving that the required notice of bail forfeiture was not sent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“we cannot ignore the express wording of the section and hold that the 90-day period did not commence to run until notice had been mailed to the surety.”

“the language of the section lends no support to the contention that a clerk’s failure to comply with the notice requirement deprives the court of jurisdiction to order a final bail forfeiture.”

SHOEMAKER, P. J.

On December 27, 1963, defendant William J. Smith was arraigned on the charge of grand theft, entered a plea of not guilty, and was given the trial date of

[405]

February 24, 1964. When defendant failed to appear on that date, the court ordered his bail forfeited and said order was regularly entered in the minutes. On May 25, 1964, 90 days having elapsed, the court ordered a final forfeiture of bail.

On June 26, 1964, defendant filed a motion for an order setting aside the forfeiture of bail. In support of said motion, defendant filed the declaration of his attorney to the effect that he had examined the files of the clerk’s office and had found no record of any notice having been sent to defendant’s bondsmen, as required by Penal Code, section 1305, and his own declaration that he had appeared at the preliminary hearing; that subsequent thereto his then attorney had discussed with the prosecutor the possibility of dismissing the action; that defendant believed that a dismissal was possible, if not likely; that following the arraignment and the setting of the trial date, defendant telephoned his attorney several times for instructions, was unable to contact him, but left his telephone number; that when he received no return call, he assumed that all was well and that the ease had been dismissed or continued; that he did not learn of the bail forfeiture until two or three weeks after the final order of May 25, 1964; that he had never intended to avoid any court appearance and had been in Santa Clara and Monterey Counties, working, at all times subsequent to his arraignment; that he was employed as a used car salesman, was the father of several young children and the sole source of support for his family; that his bondsmen were located in Cincinnati, Ohio and Scottsdale, Arizona; that if they had been notified by letter of the bond forfeiture, they could have so advised defendant within the statutory 90-day period.

On July 3, 1964, defendant’s motion was heard by the court and denied on the authority of

People

Stuyvesani Ins. Co.

(1963) 216 Cal.App.2d 380 [31 Cal.Rptr. 208]. The order denying the motion was duly entered in the minutes of July 3, 1964.

People v. Smith

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SHOEMAKER, P. J.

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